P. Valliammal vs The State of Tamilnadu

V. Kanagaraj, J.—The mother of the detenu is the petitioner herein. She has come forward to file the above petition praying to issue a Writ

of Habeas Corpus, calling for the records relating to the proceedings of the second respondent in COC.16/2004 dated 23.3.2004, quash the

same as illegal and set the detenu Muthu, S/o. Padhamuthu, TPDA No. 4170, who is now confined in the Central Prison, Trichirappalli, at liberty

forthwith.

The detenu has been detained on the ground that he was a Bootlegger, under the relevant provisions of Tamil Nadu Act 14 of 1982.

Heard Mr. Abudu Kumar Rajarathinam, learned government advocate on the criminal side with no representation made on the part of the

petitioner.

On a perusal of the records, it comes to be noted by this Court that in the ground case against the detenu in Perambur Police Station Crime No.

160/2004 has been registered under Sections 4(1)(aaa) r/w. 4(1-A) of the TNP Act 1937, wherein in the remand order, it is noted by the learned

Magistrate that the accused was produced and no complaint of ill-treatment; no prima facie case u/s 4(1-A) TNP Act and therefore, remanded

only u/s 4(1)(aaa) TNP Act till 29.3.2004, thereby making it very clear that in spite of no case having been made out against the detenu in the said

case at the time of remand, still, on account of non-application of mind, the detaining authority, as stated in the relevant paragraphs, has proceeded

on the assumption that the detenu has been remanded even u/s 4(1-A) of the TNP Act, 1937. Therefore, it is a clear-cut case for non-application

of mind at the time of passing of the detention order, as a result of which, the detention order gets vitiated in law, and in these circumstances, this

Court is left with no choice but to quash the detention order passed by the second respondent herein.

This Court''s attention is also drawn to an earlier order passed by a Division Bench of this Court, wherein the Division Bench has decided a

similar question involved in H.C.P. No. 1026 of 2003 dated 19.11.2003 and it is relevant to extract the operative portion of the order, which is

extracted hereunder :

Learned counsel for the petitioner contends that the order of detention is vitiated by non- application of mind, in that, the order of detention

proceeds as if the detenu has been remanded for all the offences for which the crime has been registered while the remand order reflects that the

remand has been made only in respect of the offences under Sections 4(1)(aaa) and 4(a)(i) of the Tamilnadu Prohibition Act. The detaining

authority should have called for a report in this respect. At the time of remand, Section 4(1-A) was deleted by the Magistrate. As what has been

seized under the mahazar has not been produced before the Court, the Magistrate declined to order remand for the offences u/s 4(1-A).

Therefore, there is non- application of mind. It is pointed out that the detaining authority should have called for a report in this respect and without

calling for a report, the order of detention has been passed as if the detenu has committed all the offences as has been registered against him in the

first information report. This renders the detention illegal.

Falling in line with the above order of the Division Bench, since the present case is on similar facts and circumstances, this Court has to pass its

order in the following manner :-

In result,

(i) the above Habeas Corpus Petition is allowed;

(ii) the detention order dated 23.3.2004 made in COC.16/2004 by the second respondent herein is quashed;

(iii) the detenu, viz., Muthu, S/o. Padhamuthu, is directed to be set at liberty forthwith unless his detention is required in any other case or cause.